Fleeing Domestic Violence and Crossing International Boundaries: Implications for Child Custody

Background and Purpose: The Hague Convention on the Civil Aspects of Child Abduction took effect in the United States in 1988; presently, 51 countries are signatories to the treaty. The Convention has two goals. First, it prohibits parents from taking their children from the children's home country. Second, the Convention establishes procedures for promptly returning removed children in the event of their removal. Although the Convention is focused exclusively on where a child should live, decisions based upon it have significant implications for battered women. These women may feel compelled to flee their home countries with their children in order to ensure their safety. In the process, they may violate the Convention's terms. There has been no research documenting outcomes of U.S. cases involving the Convention and domestic violence, nor the factors influencing these outcomes.

Methods: Data were gathered through a comprehensive keyword search of legal databases (Westlaw/LexisNexis) for U.S. cases involving the Convention and domestic violence. Forty-seven published judicial opinions were identified and analyzed for this study. The analysis proceeded in two stages. First, opinions were coded for demographic and outcome information, including: parents' and children's nationalities, whether children were returned to their home countries, types of domestic violence, presence of child maltreatment, legal strategies, and reasons for court decisions. Second, there was a close reading of the opinions that: (1) identified the importance of domestic violence to the judges' decisions; and (2) described the ways judges characterized violence in the cases.

Results: When ratified by the U.S., it was believed that Hague disputes would involve non-custodial, foreign fathers who took their children out of the country against the wishes of the children's mothers. In contrast, this study finds that 92% of U.S. Hague cases with domestic violence involved American mothers who removed young children (median age of six) from their home countries. Although serious domestic abuse was described in the opinions, children were returned to their fathers in almost half of the cases. Judges accepted arguments that the return of these children would constitute a “grave risk” to their safety in only 26% of cases. The study revealed five factors that influenced judicial decision-making: (1) the presence of child maltreatment; (2) a child's witnessing domestic violence; (3) the presence of expert testimony; (4) a PTSD diagnosis for the child; and, (5) threats by the abusive partner to kill the child or the mother.

Implications: The study's findings are notable given significant evidence that domestic violence against mothers places children at risk for psychological and physical harm. Outside of Hague disputes, U.S. courts often take exposure to domestic violence into account when making child custody and placement decisions. However, this study indicates that in Hague cases, the courts are reticent to acknowledge the connection between domestic violence and harm to children. With globalization, treaties such as the Hague Convention are becoming increasingly important to front-line social work practice, and social workers need to become familiar with the ways these laws affect the safety of battered mothers and their children.